Jim Lafferty on Friend of the Court : On the Front Lines with the First Amendment

Defending the First Amendment from Attacks Coming from Both Left and Right

FOR MORE than 40 years now, attorney and law professor Floyd Abrams has been, as the subtitle to his latest book attests, “on the front lines with the First Amendment.” Abrams, more than any other First Amendment lawyer, has been its chief defender: think of a major Supreme Court case on the amendment and chances are pretty good Abrams was involved. Or, as Nadine Strossen, former president of the American Civil Liberties Union, says, writing of Abrams, “To say that Floyd Abrams has been the nation’s premier litigator on First Amendment issues for the past 40 years is to understate the case: no one else even comes close.”

Friend of the Court: On the Front Lines with the First Amendment is largely a collection of Abrams’s earlier writings, speeches, debates, oral arguments, and testimony spanning his long career. And happily Abrams is, in addition to being a great advocate and legal scholar, a fine writer. Although some of the pieces in this book are a bit dated and some a bit repetitive, the consistency of Abrams’s arguments is refreshing and very much in keeping with his absolutist position where First Amendment issues are concerned.

A recurring theme is Abrams’s contention that attacks on First Amendment freedoms come from the left as well as the right. Their criticisms are often tied to how they think a particular Supreme Court ruling on the First Amendment squares with their political philosophy more than it is to a true and consistent respect for the First Amendment.

The left’s attack on the Supreme Court’s ruling in Citizens United is a case in point. And it is Abrams’s absolutist position that leads him to applaud the Court’s decision in that case, a case allowing corporations and unions alike to spend outlandish and unfettered amounts of money on political campaigns. In this he has angered many on the left, including many of his longtime admirers. So it’s not surprising that he devotes an entire chapter to the Citizens United case and his defense of it. At the chapter’s center is his debate with another renowned defender of the First Amendment, attorney Burt Neuborne, which first appeared in The Nation magazine on January 13, 2011.

Abrams begins the debate by noting that:

When the Citizens United decision was released, many commenters treated it as a desecration. People who would enthusiastically defend the free speech rights of Nazis, pornographers and distributors of videos of animals being tortured or killed were appalled that corporations and unions should be permitted to weigh in on who should be elected president.

Here Abrams’s powers of persuasion are clearly at full throttle. He cleverly includes supporters of First Amendment rights for Nazis and pornographers in his argument, and adroitly responds to those who worry about giving billion-dollar corporations the right to spend unlimited amounts of money electing whoever they wish to elect. He is, of course, correct that criticism of that decision has come almost exclusively from the left, due to its understandable fear that allowing corporations to spend millions tilts the outcome of the election in the direction of Corporate America’s preferred candidate, that given the ability of corporations to vastly outspend their rivals they are doing far more than “weighing in” on who should be elected, they are tipping the scales.

Central to Abrams’s defense of Citizens United is the fact that corporations have, for decades now, been considered “persons” for various purposes. But while that is certainly true, it is not the case that the courts have bestowed personhood on corporations for all purposes. They cannot marry, adopt children, get a driver’s license. And that is exactly the point that Neuborne drives home in response. Neuborne convincingly points out that:

The business corporation is an artificial state-created entity with unlimited life, highly favorable techniques for acquiring, accumulating and retaining vast wealth through economic transactions having nothing to do politics; and only one purpose — making money.

His point being, of course, that these are legal benefits not enjoyed by those of us who are merely individual “people.” And he notes that courts have said that corporations don’t, for example, enjoy the Constitutional right against self-incrimination and other rights enjoyed by “natural persons.” So why should they enjoy First Amendment speech rights that, as a practical matter, give them a “right” or "advantage” we do not have when it comes to choosing who our leaders will be.

One of the liveliest debates in the book is with Catharine MacKinnon, where the subject is, of course, censorship, which in Abrams’s mind is virtually always a “vice.” Originally an exchange between Abrams and MacKinnon in TheNew York Times Magazine in 1994, it begins with a discussion and debate over “hate codes” and sexual harassment on campuses. Professor MacKinnon, author of Only Words, gained fame as a left-leaning proponent of censorship of writings, pictures, films, and other work that she viewed as degrading to women. The debate really heats up when they turn to the censorship ordinance MacKinnon drafted with Andrea Dworkin, and which was ultimately struck down as unconstitutional by the Supreme Court. The ordinance proposed that graphic depictions of women as objects of domination, conquest, violation, and exploitation were violations of those women’s civil rights, and therefore actionable. So, for example, under the ordinance, Linda Lovelace, the actress in the iconic porno film Deep Throat, could sue if the movie were shown after the ordinance passed. MacKinnon defended it as aimed at conduct, and not speech. The Seventh Circuit Court of Appeals did not buy that argument (the Supreme Court upheld the decision without comment), and Abrams points out that under her ordinance some of the great literary works (Ulysses, for example,) as well as some of the great art (The Rape of the Sabine Woman, for example) could be said to offend the ordinance.

But an even more interesting censorship case that Abrams covers involves the Brooklyn Museum of Art and a 1999 show of art by young British artists. One of the works, “The Holy Virgin,” by Nigerian-born Chris Ofili, used elephant dung as decorations for the Virgin Mary. New York Mayor Rudolph Giuliani, who admitted to never having seen the painting, nevertheless demanded that it be removed, or he would see to it that the museum was defunded. (The city provided some of the museum’s funding.) But the New York court ruled that the Supreme Court had made clear that, “even in the provision of subsidies, the government may not ‘aim at the suppression of dangerous ideas.’” And Floyd Abrams chalked up another victory.

A chapter of the book certain to gain no favor with the left is Abrams’s treatment of the First Amendment as it relates to national security issues, much in the news just now. Abrams was one of the lawyers involved in the Pentagon Papers case. He supported the decision in that case, and his writing in this book makes it clear that it had much to do with the fact that the government could not conclusively show that any actual material harm to the government would result from the continued publication of the papers. He writes that:

One conclusion I offered in 1981 [when he had reviewed the matter for an article he wrote for the New York Times] I would repeat without qualification today. I concluded then that “[n]one of the dire consequences of publication foreseen by the government came to pass.” Preparing my article, I had interviewed all the government witnesses in the case who would speak with me. None could cite a single example of harm sustained by the nation as a result of publication, and some — a number in fact — commented on benefits from publication.

Sadly, all of the writings in Friend of the Court predate the current debate over privacy prompted by Edward Snowden’s release of NSA documents. But there is enough in the old writings to give us a pretty good idea as to how Abrams feels about what Snowden has done. For starters, Abrams supports the USA Patriot Act, despite what he admits are its incursions into our right to privacy and its impact on our First Amendment rights. This is because, post 9/11, he writes, “I am persuaded that the degree of threat to our individual security is unparalleled in American history. We live in a new world in which foreign terrorists, dedicated to our destruction, suicidal in behavior, and with possible access to modern weapons, imperil our people.” And a bit later, “As a result, we must, I think, be prepared to yield some of our privacy, to accept a higher level of surveillance of our conduct, even to risk some level of confrontation with the Fourth Amendment of the United States Constitution.” And given that, unlike in the Pentagon Papers case, at least some of the documents Snowden released could be said to cause harm to the United States, it seems that Abrams might not defend Snowden’s release of secret government documents as he did Ellsberg’s release of the Pentagon Papers.

This becomes even clearer upon reading Abrams’s short piece, near the end of the book, written on October 4, 2011, which provides some clarification of his current thinking. Again, he notes that whereas The New York Times publishing the Pentagon Papers resulted in no harm to the nation, the same can’t be said of the WikiLeaks disclosures that included over 250,000 State Department cables (or, it would follow, the Snowden NSA disclosures). Among those named in the WikiLeaks revelations were, as reported in the Times, “a UN official in West Africa and a foreign human rights activist working in Cambodia [... who] had spoken candidly to American embassy officials on the understanding that they would not be publically identified.” He also challenges the notion that WikiLeaks is “journalism,” claiming it is no more than a source for journalists and not, therefore, entitled to the same constitutional protections as are journalists and the newspapers for which they write.

All of this calls into question Abrams’s own proclaimed “absolutist” position. It would seem that he falls prey to the same ideological seduction that he accuses others, both left and right, of falling prey to. For in finding the Snowden or WikiLeaks disclosures to be harmful to the nation he is clearly applying his own political philosophy.

At the end of Friend of the Court, Abrams writes that:

Liberals vigilantly seek to protect the rights of adults to receive not-quite-obscene materials on the Internet, but seem all but indifferent to UN-sponsored efforts to ban the supposed “defamation” of Islam. Conservatives care deeply about such efforts to stifle speech, but offer little if any protections to American students when they mouth off outside of their schools.

And in this regard he notes that:

One of the oldest of all political observations is that where you stand depends upon where you sit. Is it really too much to ask that those who claim that they care about the First Amendment — everybody, that is — stand in favor of free speech even when the speech at issue pains them ideologically?

It’s a fair question, and one would hope that anyone reading this fine book, by the Amendment’s chief defender, would embrace the First Amendment more fully, less selectively, by the time they put the book down.